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2006 DIGILAW 1486 (DEL)

BUDHIRAJA ELECTROCALS v. DDA

2006-08-29

S.L.BHAYANA, T.S.THAKUR

body2006
( 1 ) THIS appeal arises out of a suit for recovery of money filed against the defendant/ respondent in this appeal. Issues in the suit were framed vide order dated 07-01-2004. A direction to the plaintiff to commence its evidence was issued on 21-01-2004 and the suit posted for plaintiffs evidence for 27-01 - 2004 when the same was closed as the plaintiff had not produced any witness for examination on that date. Two days later,. e. , on 29-01- 2004 the court below dismissed the suit on merits. Aggrieved plaintiff/appellant has filed the present appeal in this court. ( 2 ) MS. Monica Sharma, counsel appearing for the appellant, made a two-fold submission before us. Firstly, she urged that the order of dismissal of the suit on merits was wholly unjustified in the facts and circumstances of the case and in particular because the plaintiff was absent on 29-01-2004 when the suit was dismissed by the court below. She drew our attention to Order 17, rule 2 and 3 of the code of Civil Procedure and argued that in a case where plaintiff was absent on the date of hearing, the proper order which the court could pass was one for dismissal of the suit for non-prosecution in terms of Order 17, rule 2 of the Code. It was only In cases where substantial evidence of the party who was absent, had been recorded by the court that the court could invoke Explanation to Rule 2 of Order 17 CPC and proceed with the case as if the party was actually present. No evidence in the present case having been recorded, Explanation to Rule 2 of Order 17 cpc could not, according to the learned counsel, be invoked by the court and the only order which the court could pass on 29- 01-2004, the date when the suit came up for hearing, was an order of dismissal of the suit for non-prosecution. In support, she placed reliance upon Prakash Chander Vs. Janki manchanda AIR 1987 SC 42 and B. Janakiramaiah Chetty Vs. A. K. Parthasarthi and others 2003 (IV) AD (S. C.) 125 = 2003 (5) SCC 641 . In support, she placed reliance upon Prakash Chander Vs. Janki manchanda AIR 1987 SC 42 and B. Janakiramaiah Chetty Vs. A. K. Parthasarthi and others 2003 (IV) AD (S. C.) 125 = 2003 (5) SCC 641 . ( 3 ) SECONDLY, she argued that closure of plaintiff's evidence by the trial court was, in the facts and circumstances of the case, hasty and resulted in a denial to the appellant of an opportunity of establishing its claim. It was submitted that within three weeks of framing of the issues, the court had, without giving a fair opportunity, closed evidence of the plaintiff. This court could, according to the learned counsel, set aside the impugned judgment and decree, and grant a final opportunity to the appellant to adduce its evidence in the interest of justice and to avoid multiplicity of proceedings which will be inevitable in case the suit is remanded simply for fresh orders by the court below. ( 4 ) ON behalf of respondent DDA, it was, on the other hand, argued that since evidence of the plaintiff stood closed by order of the trial court elated 27-01-2004, dismissal of the suit on merits was a forgone conclusion and was rightly ordered vide the judgment and decree impugned. It was contended that the provision of Order 17, rule 3 CPC gave ample powers to the trial court to decide the suit forthwith in case a party to whom time was granted, failed to produce its evidence or to cause attendance of its witnesses or to perform any other act for the progress of the suit. It was submitted that the order passed by the trial court was one referable to Order 17, rule 3 (a) CPC and that Order 17, rule 2 cpc had no application whatsoever. ( 5 ) WE have given our anxious consideration to the submissions made at the bar. Order 17, rule 2 of the Code of Civil Procedure specifically provides that if on the date to which the case is adjourned, the parties or anyone of them fails to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf u/o 9 CPC or make such order as it deems fit. A reference to Order 9 of the Code would, on the other hand, show that in case the plaintiff is absent on the date to which the case is adjourned, the court is competent in its discretion to dismiss the suit for non-prosecution. Explanation to Rule 2 of Order 17 CPC, however, carves out an exception to the general rule in situations where the parties or anyone of them is absent on the date of hearing and had led his evidence or a substantial portion thereof. The court in such cases can proceed with the suit as though the absent party was present before it. ( 6 ) IN the instant case, the plaintiff was admittedly absent on 29. 01. 2004. In the ordinary course, therefore, the only order which the trial court could logically make was an order dismissing the suit for non- prosecution. The court Could invoke explanation to Rule 2 of Order 17 CPC only if substantial evidence of the plaintiff had been- recorded. The fact of the matter, however, is that no evidence whatsoever had been recorded on behalf of the plaintiff. There was, therefore, no room for the court to invoke explanation to rule 2 of order 17 Such being the position, the order which the court below could pass was an order of dismissal of the suit for non-prosecution and not one on merits, inasmuch as the court purported to have dismissed the suit on merits, it committed a mistake which is apparent on the face of the record. We are supported in the view by the two decisions which the learned counsel for the appellant has relied upon. The said decisions declare in unequivocal terms that a suit where parties or any of them is absent on the date of hearing, disposal of the suit under rule 2 of order 17 CPC is permitted only in the manner permitted by Order IX cpc unless evidence or a substantial part thereof has been adduced by the party who was absent on the date to which the case was posted. That conclusion gets considerable support from a reading of Rule 3 of Order 17 cpc also. Rule 3 of Order 17 CPC provides for consequences arising out of a Default by a party. That conclusion gets considerable support from a reading of Rule 3 of Order 17 cpc also. Rule 3 of Order 17 CPC provides for consequences arising out of a Default by a party. Default could be in the nature of failure to produce evidence or cause attendance of the witnesses or to perform any other act necessary for further progress of the case. The Present is not, however, a case where the suit could be dismissed u/o 17, Rule 3 CPC because there was no default as such attributable to the plaintiff in regard to production of evidence or causing attendance of his witnesses. The impugned judgement does not invoke Rule 3 to Order 17 CPC nor mention the failure of the plaintiff to produce its evidence as the reason why the same has been pronounced. ( 7 ) THE next question then is - whether we ought to go a step further and give to the plaintiff an opportunity to adduce evidence in support of its claim. In,the ordinary course since we have found fault with the trial court invoking Rule, 3 of Order 17 CPC instead of rule 2 of Order 17 CPC we would have remained content with setting aside the impugned judgment and decree and a remand of the suit back to the trial court for passing a fresh judgment in accordance with law. That course would, in our view, once again result in another round of litigation. We say so because if the impugned judgment and decree are set aside and the suit restored for a fresh disposal in accordance with law, the court would after hearing arguments, once again dismiss the same on the ground that the plaintiff had failed to adduce evidence in support of his claim in the suit. To avoid any such multiplicity, therefore, we suggested to learned counsel for the respondent that we could, direct grant of an additional opportunity to the Plaintiff to prove its claim. Learned counsel was, however, unable to give his consent for the order that we proposed to make his inability notwithstanding we are of the view that facts and circumstances of the case fully justify our interference With the order of the trial court by which it closed the evidence of the plaintiff merely three weeks after the issues had been framed. It is true that the plaintiff ought to have filed a list of witnesses as required under order 16, rule 1 of the Code of Civil Procedure. It is also true that plaintiff had not filed any affidavit of the witnesses which he proposed to examine in support of its claim but keeping in view the nature of controversy, we are inclined to give a final opportunity to the plaintiff to do so. ( 8 ) IN the result, this appeal succeeds. The judgment and decree impugned is hereby set aside and the suit remanded back to the trial court for a fresh disposal in accordance with law. The trial court shall fix a date for recording of the evidence of the plaintiff. The plaintiff shall have a final opportunity of filing the affidavits of the witnesses which it proposes to examine including its own affidavit, within a period of three months from today with an advance copy to the counsel opposite. The plaintiff shall keep its witnesses present for cross-examination before the trial court on 11-12-2006. Failure of plaintiff to file affidavits or to keep the witnesses present cross-examination shall result in forfeiture of its right to do so. The trial court can, in that event, proceed to dispose of the suit on merits once again in accordance with law. Parties to appear before trial court on 18. 9. 2006. No costs.